Malaysia – Religious council takes stand that Islamic law is above constitution

SHAFAQNA – The Federal Territories Islamic Religious Council (MAIWP), which opposes non-Muslim lawyers practising Shariah law, today gave notice that all Islamic enactments are excluded from fundamental liberties in the Federal Constitution.

MAIWP lawyer Mohd Hanif Khatri Abdulla said this was a new point of monumental constitutional importance to be raised in Victoria Jayaseele Martin’s appeal in the Federal Court, where the lawyer is seeking the right to practise Islamic law in the Shariah court.

“The court has granted an adjournment so that we can make preparation to argue this case from this perspective,” Hanif told reporters today.

Hanif said the postponement would also give the Attorney-General’s Chambers time to decide which position to take.

The Federal Court registry has fixed the case to be heard on August 13.

MAIWP’s position means that it does not hold the Federal Constitution as being secular in nature.

Chief Justice Tun Arifin Zakaria was scheduled to lead a five-man bench to hear the appeal today against the Court of Appeal’s ruling in June 2013 which stated that non-Muslim lawyers were eligible to practise as Shariah lawyers.

The legal question to be argued was whether Rule 10 of the Rules of the Shariah Lawyers 1993 were against Articles 5, 8 and 10 of the Federal Constitution.

The Federal Court on January 28, 2014 allowed without contest the question as to whether Rule 10, which stipulated that only Muslims could be admitted as Shariah lawyers, was beyond the authority of the Administration of Islamic Law (Federal Territories) Act 1993.

Any appeal before the apex court must be a novel question raised for the first time which would be of public importance.

In a landmark ruling, a three-man appellate court on June 21, 2013, unanimously ruled that non-Muslims were eligible to practise as Shariah lawyers in the Federal Territories of Kuala Lumpur, Putrajaya and Labuan.

Datuk Abu Samah Nordin, who led the bench then, said that MAIWP’s refusal to process an application of a non-Muslim lawyer to practise as a Shariah lawyer was an act that exceeded its legal powers.

Samah said Section 59 (1) of the Administration of Islamic Law (Federal Territories) Act 1993 clearly stated that “any person” with sufficient knowledge in Islamic law may be appointed as Shariah lawyer.

Section 59 (2) gives the power to the council to make rules about the qualification of Shariah lawyers.

“If the intention is to prohibit non-Muslims from appearing in a Shariah court, it should be expressly stated in the legislation,” he said in allowing the appeal by Martin.

Samah said Martin’s application to appear in the religious court was not given due process by the council.

Martin filed a judicial review application in 2010 and sought an order to compel the council to allow her to practise as a Shariah lawyer in Kuala Lumpur.

She also wants the court to issue a declaration that Rule 10, which allows only Muslims to be accepted as Shariah lawyers, is against the Federal Constitution.

The High Court dismissed her application in 2011.

Despite her victory in the Court of Appeal, Martin cannot appear in the Shariah court as the council was given a stay from processing her application.